Mike Kueber's Blog

June 30, 2013

Race-conscious contracting by the City of San Antonio

During my City Council campaign, I provided two examples of Mayor Castro and his cronies on the City Council taking actions that unfairly discriminated against Anglos:

  • Redistricting.  Votes in the districts with the most Anglos were severely diluted.
  • City contracting.  Preferences were given to businesses owned by minorities.

In the course of researching the redistricting issue during the campaign, I learned that the City’s treatment of its Northside districts was not only inequitable, but also illegal, and I am in the process of getting that illegality rectified.  While doing some research this week on affirmative action, I stumbled across a Supreme Court decision that indicates the City’s race-conscious contracting is similarly illegal.

My first awareness of race-conscious contracting occurred in January this year, and I blogged about it shortly before getting into the council race.   The blog entry was based on two articles in the Express-News that described not only the Council’s first step of helping minority businesses to be more successful in the bidding process, but also the Council’s Plan B in the event that the first step wasn’t adequately successful:

  • At a City Council meeting last month, Fair Contracting Coalition members said city contract awards should mirror the diversity of San Antonio’s business community.  Members of the Fair Contracting Coalition want the city to step up its race-conscious method of awarding contracts to one of ‘segmentation,’ a method that would consider each racial and ethnic group separately and set hard goals for awarding contracts to each.  The city would move to segmentation only if it determines that the race-conscious plan isn’t effective.  It will take about a year to determine whether the race-conscious plan is working.  The city made the decision to abandon its long-running practice of weighing race and ethnicity in contracting decisions in 2010, a move that was effective in January 2011.  However, it switched back to a race-conscious program last May, saying minority participation plummeted under its race-neutral program.  The city noted it paid $24.3 million in construction contracts for the August 2011 through mid-May 2012 period, with minority- and women-owned businesses garnering $4.7 million, or 19 percent, far short of the city’s goal of 29 percent.”

The relevant Supreme Court decision that I stumbled across earlier this week is City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).    According to Wikipedia:

  • Croson was a case in which the United States Supreme Court held that the city of Richmond’s minority set-aside program, which gave preference to minority business enterprises (MBE) in the awarding of municipal contracts, was unconstitutional under the Equal Protection Clause. The Court found that the city failed to identify both the need for remedial action and that other non-discriminatory remedies would be insufficient.
  • Croson involved a minority set-aside program in the awarding of municipal contracts. Richmond, Virginia, with a black population of just over 50 percent had set a 30 percent goal in the awarding of city construction contracts, based on its findings that local, state, and national patterns of discrimination had resulted in all but complete lack of access for minority-owned businesses. The Supreme Court stated:
    • We, therefore, hold that the city has failed to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race. To accept Richmond’s claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. [Citing Regents of the University of California v. Bakke]. Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classification. We think such a result would be contrary to both the letter and the spirit of a constitutional provision whose central command is equality.”

The similarities between Richmond and San Antonio are striking.  Both are cities where a minority was the majority (blacks in Richmond and Hispanics in San Antonio), yet they implement a program to favor themselves over the Anglo minority.  A major distinction is that Richmond established a hard goal, whereas San Antonio is merely threatening to do that if their softer techniques don’t succeed.

It is unclear to me whether the Supreme Court would look more generously on a technique that grants points to minorities instead of relying on hard quotas, but at a minimum the Court will require that the City Council based its action on a strong report showing that race-conscious contracting is (a) a compelling governmental interest and (b) narrowly tailored to accomplish its purpose.

Two-bit bet says San Antonio hasn’t done that.

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